Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Kentucky ruling on same-sex marriages

Posted Wed, February 12th, 2014 5:51 pm by Lyle Denniston

A federal judge in Louisville ruled Wednesday that same-sex couples living in Kentucky who were married elsewhere have a constitutional right to official acceptance of their marriages and to equal access to marital benefits. While the judge limited his ruling to that specific issue, he predicted that the analysis he used would eventually mean that same-sex couples will gain the right to marry across the nation.

The ruling by U.S. District Judge John G. Heyburn II, in a twenty-three-page opinion, was another indication that equal access to marital benefits is becoming increasingly an approach used by courts leading toward full recognition of equal marital rights for gays and lesbians.

In fact. the judge suggested that it may take just one more Supreme Court ruling “in the next few years” to complete “the judicial journey” toward full equality for gays and lesbians in American law.

The judge wrote that the Supreme Court’s ruling last June in United States v. Windsor“would seem to command that a law refusing to recognize out of state same-sex marriages has only one effect: to impose inequality.” The Windsor decision struck down a part of the federal Defense of Marriage Act that barred equal federal benefits related to marriage to same-sex couples who are legally married.

Aside from relying upon the Windsor decision, Judge Heyburn said he was following “a virtual tidal wave” of new laws and court rulings that have given same-sex couples a right to marry or to have their existing marriages formally recognized.

Taking note of a trend that has grown more obvious across the country, the Kentucky jurist commented that there have been nine state and federal court rulings in favor of same-sex marriages, and that in “the last several months alone,” three federal judges “have issued well-reasoned opinions” supporting the right of same-sex couples “to marriage equality.”

He traced much of this to a series of Supreme Court rulings advancing gay rights — written by Justice Anthony M. Kennedy — and culminating in the Windsor decision last June.

Although the judge said he was bound by precedent in his judicial region (the federal Sixth Circuit) to apply only the easiest-to-meet constitutional standard — that is, “rational basis” review — he said that Kentucky’s refusal to give equal treatment to validly married same-sex Kentuckians could not satisfy even that low-level test. He canvassed all of the arguments made for treating same-sex married couples differently, and found none of them to have merit.

A noteworthy part of Judge Heyburn’s opinion was a studied effort to explain to those who would be offended by his ruling, especially on the basis of their religious or cultural beliefs, why he was led to his decision as a constitutional matter. That section of the ruling read very much like a basic civics lesson about the way that the Constitution’s protection of individual rights may sometimes override traditional moral and political preferences, and even trump the expressed wishes of a political majority.

Since 1998, Kentucky has had state laws against same-sex marriage and against recognizing out-of-state same sex marriages. And, in 2004, Kentucky became one of a lengthy list of states to put a ban on same-sex marriage into the state constitution, in the wake of the first state supreme court ruling in favor of same-sex marriage — in Massachusetts. Kentucky’s amendment was approved at the polls with more than seventy-four percent in favor.

The laws and that amendment were challenged by four same-sex couples living in the state, each of whom had been married in places allowing such marriages — in California, Connecticut and Iowa or in Canada. Their lawsuit did not challenge the ban on such marriages in Kentucky, but only that state’s refusal to recognize their existing marriages as equal to those of opposite-sex married couples in the state.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]